Not one but two bills would add vim and vigor to the Whistleblower Protection Act as it applies to the Department of Veterans Affairs. For summaries and why she thinks they’re a good idea, the Policy Counsel at the Project on Government Oversight, Melissa Wasser, spoke to Federal Drive with Tom Temin.
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Tom Temin: Ms. Wasser, good to have you on.
Melissa Wasser: Good to be here, Tom.
Tom Temin: And these bills concern the Office of Accountability and Whistleblower Protection, OAWP at VA, which I guess by all accounts has not been all that effective, has it?
Melissa Wasser: That’s correct. It hasn’t been as effective as it could be. So there’s two bills out right now: One on the majority side in House, one on the minority side in the House. It’s just a discussion draft right now. Both bills would take steps to try to bring more accountability to that office where it’s so desperately needed.
Tom Temin: Alright, let’s start with the Strengthening VA Whistleblower Protection Act of 2021. That’s the majority bill and what would that bill do and tell us more about it?
Melissa Wasser: Sure. So that bill is trying to give this Office of Accountability and Whistleblower protection, or OAWP, some more independence from the agency. POGO has warned for a long time that placing this office within the agency kind of creates at least the appearance of a conflict. Though what we know now is that even from VA whistleblowers is that that office is working together more with the agency than we would like. So the Strengthening VA Whistleblower Protection Act would give OAWP a specific office general counsel. It would also make clear that those employees in OAWP cannot speak with the VA general counsel on ongoing cases. Normally what happens before pursuing – even giving a disciplinary recommendation, the OAWP will reach out to VA general counsel. And obviously those two entities have different ideas in mind, right? OAWP should be there to protect these whistleblowers and to make sure that there’s accountability for those who retaliate and senior leader misconduct. But the VA is more worried about protecting the agency. So that bill would give them that general counsel, which they actually need very much. They would also make sure that those employees that are in the VA’s Office of General Counsel would be banned from joining the OAWP’s general counsel office and close a revolving door that we’ve been seeing between the agency and OAWP.
Tom Temin: Really interesting. So in other words, you almost want it to be like the IG office, in some sense, to make an analogy that is part of the agency, but has some independence from the top powers that be?
Melissa Wasser: That’s correct. The IG model has been really successful in making sure that there’s some independence in between the office of the agency. So in order for them to be able to do their job and make sure that there’s an unbiased view of these allegations that these whistleblowers are bringing forward, having that independence is absolutely crucial to the success of protecting those whistleblowers.
Tom Temin: And then there’s the amending Title 38. That’s the medical staff people in VA, quite a number of them, to strengthen and improve [the] Whistleblower Protection Office. That’s the minority bill, and how would that work?
Melissa Wasser: That’s correct. So the majority of the minority are coming from I think, a good place where they both want to strengthen protections, I just think they’re coming from at different sides of the coin. So this amending Title 38 bill would include new reporting requirements. So they want to make sure that there’s a full analysis of what the office is doing. Identifying issues within the office, there were reports of retaliation coming within that office as late as last year. They’d also want to make sure that if there’s any concerns about the offices size or staffing, OAWP would be able to give recommendations for any legislative action. I think the most interesting part of that bill, it gives the secretary of the VA the authority to transfer funds back to the Office of Special Counsel to help address whistleblower and retaliation claims. And if you or your listeners remember, OAWP was created to handle a surge capacity of cases coming from OSC. So this would give authority to give them a little bit more funding back to the office.
Tom Temin: Right, this all has its origin, I guess, back before the pandemic – few years ago, during all of that scheduling problem when people couldn’t get appointments to go to the VA to get health care.
Melissa Wasser: Right, exactly.
Tom Temin: We’re speaking with Melissa Wasser, she’s policy counsel the Project on Government Oversight. So do you see a pathway for these bills to maybe be harmonized by the Democrats and Republicans?
Melissa Wasser: I absolutely think they can be harmonized in some way. It’s very clear from the substance of both of these bills that both the majority minority are coming from a place of wanting to protect whistleblowers. They see the value in whistleblowing, especially at the VA. And they see the value in terms of, saving lives and saving this taxpayer money. So I think they definitely could be harmonized. I think they do need to kind of figure out, you know, on the reporting end it’s good to have reporting, it’s good to have transparency in reporting. But we want to make sure it’s not duplicative of things that are already existing in terms of reporting. So we think that those bills can go even further to protect whistleblowers at the VA.
Tom Temin: And these are coming up in the House, pretty soon, aren’t they? And you’re going to be there to return and testify?
Melissa Wasser: Yes, I’ll be returning to testify as to the status of these bills and more generally, accountability and protecting whistleblowers at the VA in front of the House Veterans Affairs Committee. And so those will be, some of our main recommendations. I think it’s very important to note that OAWP’s specific general counsel is probably one of the shining notes of that bill, just because the lack of independence between the agency and the office is particularly troubling. And so we need to make sure that those whistleblowers can feel like their disclosures are being heard and actually being brought to light and seeing the outcome of that.
Tom Temin: And what do we know about that surge? Again, that was about four or five years ago now. Have things settled down to where there’s just the normal amount of whistleblower wrongdoing being alleged?
Melissa Wasser: To our knowledge? Yes, I know that OAWP has been working to eliminate a backlog of cases, which is always helpful. And I’m sure with the pandemic, changing the way that we work, and the way that those disclosures are being handled with them, virtually. They’ve tried their best to eliminate that backlog. But there’s still these issues that remain. And so we want to make sure that if there’s one chance at this bill that we can get in front of that committee and let them know that this lack of independence is a problem. There’s really no enforcement power as well. I think that’s a big thing that we haven’t covered really is when OAWP gives disciplinary recommendations out, they have no enforcement to actually see those disciplinary recommendations through. And so they list on their website that they give it out about 105 disciplinary recommendations and corrective actions. But under the current laws, they have no authority to enforce them. And that’s a real problem.
Tom Temin: Is there any other office similar to that in another agencies that does have that enforcement power? I mean, OSC may have it, but that’s independent of all agencies. Is there a structure similar to the OAWP that VA has, that existed anywhere else?
Melissa Wasser: Not, to my knowledge, we would actually kind of model that off of OSC. And potentially, if we’re able to not get enforcement authority, right, we’re looking at more of a kick-out option for folks to go to OSC to bring those cases before the Merit Systems Protection Board, if VA components don’t implement OAWP’s disciplinary recommendations – which is a big ask, but we think that that is something that could really improve the system.
Tom Temin: And with respect to retaliation, which is the potential outcome of when there’s a conflict of interest in the general counsel, when he or she is both the recipient of the reports and then kind of the judge of the reports, is there any evidence that you’ve heard recently that there is retaliation going on -at VA against whistleblowers, or any cases come to light?
Melissa Wasser: So there was recent reporting, talking through the case of Anthony Everett, who was a whistleblower. He’s leading the security team that protects senior VA officials. And we’ve written about this, two of our investigators at POGO saw how the prior VA chief would take political aides to ensure that they would protect the secretary at all costs. And what we have seen is at least in the case of Mr. Everett, he reached out to OAWP back in October of 2020, and made a disclosure of what he saw to be an ethical breach and a misuse of taxpayer money. This was supposed to be kept confidential. As you know, keeping whistleblower complaint confidential is the best way to prevent retaliation. But three hours after he made that disclosure, he was demoted with no reason given and so that seems to be the common occurrence is that there’s retaliation is still a problem. And hopefully what’s in both of these bills once they bring them together will help kind of prevent that retaliation a little bit more.
Tom Temin: Melissa Wasser is policy counsel at the Project on Government Oversight. Thanks so much.
Melissa Wasser: Thanks so much for having me, Tom.